Michigan Court of Appeals Demands Due Process for Families in Termination of Parental Rights Proceedings

Are we here for the parents, or are we here for the kids? That’s a question that underlies nearly every child welfare policy issue, and it’s a question often asked of and by child and family advocates. Yet it’s a question, in my view, that reveals a fundamental misunderstanding of how to protect children.

Arbitrary, lawless removals by child protective services don’t just run roughshod over parents’ rights. They also threaten the safety, stability and well-being of kids themselves. The State of Michigan Court of Appeals seems to understand that, and in In re: D. GACH, Minor, the court struck down the provision of Michigan’s termination of parental rights statute that allowed courts to terminate a parent’s rights based solely on a previous TPR, without any showing of a parent’s continuing lack of fitness. Kudos to Rory Pulvino and Shannon Seiferth for writing the brief, and to Shannon for the oral argument. Both are students of Vivek Sankaran at the University of Michigan Law School, and both deserve our attention as their careers move forward.

At age 3, “DG” was found walking around outside the family home, unsupervised and in a dirty diaper. That’s not the reason, though, that DG was placed in nonrelative foster care and denied contact with the mother for almost two years. The agency admitted that DG’s own case would have resulted only in a voluntary offer of services to the family, were it not for three previous terminations of parental rights for children the mother had in a previous relationship with a man who was convicted and incarcerated for the death of one of those three children. DG’s removal and the legal termination of his relationship with his mother was automatic, under Michigan law and practice, solely because of the previous cases. It did not matter to the agency or the lower court that all evidence showed that the mother had ended the relationship with the man, and fully understood he was a serious risk to DG. When DG was born, the agency had “concluded that no relationship existed” with the man and that there were “no concerns warranting further investigation.” A caseworker testified that the mother would have been offered services to help her parent DG rather than the default of an automatic TPR, but that “her agency was ‘not allowed’ to take that approach ‘due to state policy’”.

No doubt the policy was created to “protect” children, with all that due process for parents seen as an unnecessary obstacle. But was little DG helped by being separated from his mother, in law and in fact, for almost two years? How were his best interests served by taking away his mother, not for her unfitness, but for the sake of an unsupported presumption? The court saw that Michigan law provided “no way to rebut this presumption of unfitness” when a previous TPR was present in a case, and so Michigan law is now forever changed.

Careful readers of the opinion will notice another detail that should give us pause. Some of the evidence in the case came from one of those three children who had previously been TPR’d. A daughter, now 19, is said to be in “daily contact” with her mother, regardless of the law’s attempt to terminate that bond. Parents and children build their lives together, in ways the law can’t always prescribe or even understand. If we’re here for the kids, we’re here for the parents, aunts, uncles and all the rest of the gang. We’re here for families.

Note: The views and opinions expressed in this blog post are those of the author, and do not necessarily reflect the views of the NACC.

Kendall is the Executive Director of the National Association of Counsel for Children, the national advocacy organization of attorneys and other professionals representing children and families in child welfare, juvenile justice and custody cases. Kendall served as Chief of the Bureau of Operations and as Deputy Director for the Department of Children and Family Services in Illinois, where he was also spokesperson for the Department of Juvenile Justice and the Governor’s Long Term Care Reform Task Force. Kendall grew up in a family that welcomed six adolescent foster youth, has been a foster and adoptive parent himself, and worked as a social worker with at-risk, homeless and foster youth on Chicago’s south side. He holds a Master’s in Social Work from the University of Chicago School of Social Service Administration, where he received the Wilma Walker Honor Award; and a J.D. and Certificate in Child and Family Law from the Loyola University Chicago School of Law, where he was an Honorary Child Law Fellow.